This view has the support of an able text-writer. See TAYLOR, CORP. 5th ed., 559 b. This should apply under all circumstances, even though the corporation is not voting to ratify an existing though voidable contract, but, as in the principal case, is voting to validate an entirely void agreement

TRANSFER OF TITLE TO PERSONALTY WHERE SOMETHING REMAINS TO BE DONE. — The intention of the parties is generally admitted to be the controlling factor in deciding when the title to personal property passes to a purchaser. See Martineau v. Kitching, L. R. 7 Q. B. 436. To obtain some uniformity in decisions, the courts have established artificial rules to determine that intention, the principal one of which is that when something remains to be done to the goods there is a presumption that title has not passed. This is properly a presumption of fact which may be rebutted if a contrary intention be shown, although in England in the special case of goods which are to be separated from a greater mass, it has been held to be a rule of law. Graff v. Fitch, 58 Ill. 373. See Austen v. Craven, 4 Taunt. 644.

In England the presumption is raised only when the act is to be done by the vendor. Turley v. Bates, 2 H. & C. 200. Probably this distinction arose from two circumstances. First, if what remains to be done is vital, as completion of goods before delivery, it is much more likely to be done by the vendor. Second, if the act to be done is to be performed by the vendee, it will probably be preceded by delivery to him, and that is in itself enough to show that title has passed. Haxall, etc., Co. v. Willis, 15 Gratt. (Va.) 434. In the absence of these accompanying circumstances there appears to be little weight in this English distinction, and it is not generally adopted in this country. Ballantyne v. Appleton, 82 Me. 570.

It is obvious that among the things to be done before a transaction is complete, there are some which are so vital in their nature that it is almost certain that sellers and purchasers will not intend to pass title until they are done. The separation of goods from a greater mass is an example of this. The parties might sell an undivided interest in the mass, but they will in general intend a sale of an ascertained quantity. Kimberly v. Patchin, 19 N. Y. 330; Warren v. Buckminster, 24 N. H. 336. Consequently they will intend that the goods shall be separated before title passes. Again, where the goods have to be changed or altered in some way to put them in a condition to fulfil the terms of the sale, title will usually not be intended to pass until this is done. West Fersey, etc., Co. v. Trenton, etc., Co., 32 N. J. Law 517. The same would seem to be true where the goods must be inspected to ascertain whether they conform to the requirements of the contract.

On the other hand, there are many cases where the only thing to be done is some slight act, such as measuring or weighing the goods in order to determine the exact price to be paid. Thus in a recent North Carolina case the principal thing remaining to be done was to measure the wood sold. No notice was taken of the relative unimportance of the act, and the court applied the usual presumption. Porter v. Bridgers, 43 S. E. Rep. 551. Yet when parties contract to sell a definite mass of goods which are ready for delivery, it is probable that they intend to regard the goods as the purchaser's from that time, even though the exact price is to be determined later. A few cases have therefore taken the view that in trans

actions of this sort the presumption does not exist. Sanger v. Waterbury, 116 N. Y. 371. It is to be regretted that such a desirable result has not been reached more frequently. But the general law is undoubtedly that even when the only thing that remains to be done is to ascertain the price the presumption is that title has not passed. Devane v. Fennell. 2 Ired. (N. C.) 36. It is submitted, however, that even slight evidence of a contrary intent, such as part payment of the price, should be sufficient to overthrow the presumption. Cf. Byles v. Colier, 54 Mich. 1.

HAS A TRUSTEE A DUAL PERSONALITY? The proposition that a judgment against a person sued as an individual does not work an estoppel in a second action in which he appears in order to litigate rights which he has as a representative, is laid down by several text-writers. 2 BLACK, JUDG. 536; I FREEMAN, JUDG. § 156. The reason assigned is that every representative has in legal contemplation a representative personality, distinct from his individual personality. See WELLS, RES ADJUDICATA § 21. By an application of this doctrine, a recent Kansas case holds that judgment in a foreclosure suit against a person individually does not bar him from subsequently setting up a claim to the property as trustee. Farmers', etc., Co. v. Essex, 71 Pac. Rep. 268.

It is undoubtedly true that some classes of representatives have received in their representative capacity a legal recognition which justifies in their case the application of the doctrine under discussion. An executor, for example, is treated in his official capacity as continuing the personality of his testator. The goods of the estate were not forfeited for the executor's treason; nor could they be taken in execution on a judgment against him as an individual; and personal disability did not prevent him from maintaining an action as executor. I HALE P. C. 251; Wentw. Off. Ex. 14th ed. 36; McCleod v. Drummond, 17 Ves. 152, 169. It is accordingly almost universally held that matters concluded in an action to which an executor, as such, was a party, are not res judicata in an action in which he appears as an individual. Carey v. Roosevelt, 102 Fed. Rep. 569. There has been, however, no such recognition of the official personality of the trustee. Trust property was liable to forfeiture for his crime, and his title in the trust res could be taken in execution by his creditors. Stith v. Lookabill, 71 N. C. 25; see Pawlett v. Atty. General, Hard. 466.

It might be argued, however, that although the trustee in his representative capacity has not been accorded legal recognition for other purposes, he should receive it for purposes of judgment. Although the doctrine of the text-writers already noted appears to sustain this view, an examination of the cases cited in support of it will show that a large proportion of them are not in point, since they were decided on the ground that the issue in question in the second suit was not involved in the first. See McNutt v. Trogden, 29 W. Va. 469. Practically all the remaining cases concern executors or other representatives whose separate official existence has been recognized by the law. Furthermore, an examination of the cases concerning trustees shows the weight of authority to be against the partial recognition suggested. Thus a recent Kentucky case holds that although the defendant was summoned as trustee, she was present in her individual capacity. Commonwealth v. Hamilton, 72 S. W. Rep. 744. This accords with the doctrine of other jurisdictions. Shephard v. Creamer, 160 Mass. 496.

On principle, the doctrine of the Kansas case that a judgment against a party described as trustee binds him in his representative capacity only, involves the inconsistency that while both his individual and his representative rights are held by him as one person, in order to enforce those rights he must become two persons. The doctrine is objectionable, moreover, on grounds of convenience, since it introduces new difficulties into the already complicated doctrine of res judicata, and tends to unsettle other departments of the law of trusts.

DAMAGES IN TROVER FOR SEVERANCE FROM REALTY. A recent Alabama decision raises the unsettled question as to the measure of damages in trover for the conversion of coal severed from the realty by an innocent trespasser. Ivy Coal & Coke Co. v. Alabama Coal & Coke Co., 33 So. Rep. 547. The case holds that the plaintiff may recover as damages the value of the coal immediately after severance. This rule was originally enunciated in England in Martin v. Porter, 5 M. & W. 351. A later decision, however, held that if the wrongdoer acted in good faith, the plaintiff might recover only the value of the coal in place. Wood v. Morewood, 3 Q. B. 440 n. This represents the existing rule in England. Livingstone v. Rawyards Coal Co., 5 App. Cas. 25. The decisions in the United States, while they follow the English rule as to the measure of damages for a wilful taking, are in conflict as to an innocent taking. Forsyth v. Wells, 41 Pa. St. 291; McLean County Coal Co. v. Lennon, 91 Ill. 561. The same question has arisen with regard to trees and has resulted in the same difference of opinion. Ayres v. Hubbard, 71 Mich. 594; White v. Yawkey, 108 Ala. 270.

It is well recognized that the basic principle underlying the theory of damages in the common law is compensation for loss suffered. Any departure from that principle should have a clearly defined reason to support it. Allison v. Chandler, 11 Mich. 542. It is true that the general rule of damages in trover is the value of the chattel at the time of conversion. See SEDG. DAM. 8th ed. § 493. It would seem, however, that this general rule has its foundation in the fact that in the large majority of cases it will approximately determine the actual loss suffered. Accordingly, in a number of instances where the rule would not fulfil that purpose, a different measure of damages has been applied. Thus where a party wrongfully attached another's property, and subsequently attached it rightfully, it was held that the damages in an action of trover would be reduced in so far as the chattel had been applied under the second attachment in satisfaction of the plaintiff's debt. Curtis v. Ward, 20 Conn. 204. Similarly, it is well settled that where property is converted and subsequently returned and accepted by the owner, the damages will be reduced to the actual loss suffered. Greenfield Bank v. Leavitt, 34 Mass. 1.

The argument of the principal case is that when the coal is separated it is the plaintiff's chattel, and consequently, applying the general rule, it follows that for depriving him of that chattel, the damages must be the value of the coal immediately after severance. But since the damages recovered included the value of the labor expended by the defendant in mining the coal, they were obviously more than the actual loss suffered. On the principle of the cases cited above, therefore, there would seem to be a sufficient reason for departing from the general rule. The fact that in those cases

the circumstance which caused the reduction in damages occurred after the conversion does not seem material. Waters v. Stevenson, 13 Nev. 157. They go rather on the ground that the general rule of damage would give the plaintiff more than compensation. For these reasons a result different from that reached in the principal case would seem to be preferable both in point of justice and as a matter of theory.

On principle the same result should be reached in case the taking were wilful, but the courts would ordinarily give the value at the time of conversion as a punishment to the wrongdoer.

IMPLIED WARRANTY AGAINST LATENT DEFECTS. It is frequently stated that a vendor impliedly warrants the merchantability of goods sold to a purchaser who has no opportunity to examine them. It is doubtful, however, whether this warranty extends to defects not discoverable by examination. A recent English case, decided under the Sale of Goods Act, suggests the question how far the law will imply a warranty against such latent defects. The plaintiff was poisoned by some beer which he bought from the defendant, a retail seller. The presence of the poison which the beer contained could have been detected only by a skilful chemical test. Yet it was held that there was an implied warranty by the defendant that the beer was fit to drink. Holt v. Wrenn, 19 T. L. R. 292 (Eng., C. A.). There is an apparent conflict on the subject of warranties against latent defects, owing to a failure to distinguish between warranties implied in law and warranties implied from the description of the goods sold. Where, for instance, grain is sold as "No. 2 White Wheat," there is a warranty that the grain sold agrees with the description. Whitaker v. McCormick, 6 Mo. App. 114. This is often called an implied warranty, but, since it arises only from the words used by the parties, it is in its nature rather express than implied. For that reason it is rightly held to cover latent defects. Wolcott v. Mount, 38 N. J. Law 496. But with regard to a warranty of merchantability, which is a true implied warranty, American courts have drawn a sharp distinction between sales by a dealer and sales by a manufacThe manufacturer is held to warrant against all defects, whether they are discoverable by examination or not. Rodgers v. Stiles, 11 Oh. St. 48. The dealer is held to warrant only against discoverable defects. White v. Oakes, 88 Me. 367.

turer.

Whether there is sufficient difference between the two to justify the distinction may well be doubted. The situation of the dealer differs from that of the manufacturer, if at all, only in that the former has not so great an opportunity to obviate or detect the defect. But, while this difference might have its bearing on the dealer's tort-liability for negligence, it does not necessarily mean that he has impliedly promised less. An implied warranty is arrived at by reading into the contract a stipulation which it does not contain, but which the parties would have inserted, had their attention been directed to the possibility of a defect. In determining what this stipulation must be, the true test is what the generality of mankind would regard as fair under the circumstances. The ordinary purchaser would certainly expect to get as good an article from the dealer as from the manufacturer for the full price he has paid. And on the other hand it is no hardship on the dealer to make good the deficiency in an article for which he has received full value. True, if a warranty be implied the dealer might be liable for large collateral

damages. Passinger v. Thorburn, 34 N. Y. 634. But these are suffered only in comparatively few instances; the hardship of the rule is no greater on the dealer than on the manufacturer, who is presumably not negligent; and the dealer has his remedy over against his vendor on the latter's implied warranty. For these reasons it is believed that the modification of the doctrine of caveat emptor by the Sale of Goods Act, by which all sellers impliedly warrant the merchantability of goods sold, is worthy of legislative imitation as the just and more politic rule.

Evidence of provocation

PROVOCATION IN MITIGATION OF DAMAGES. is admitted everywhere in mitigation of punitive damages. Kiff v. Youmans, 86 N. Y. 324; Ward v. Blackwood, 41 Ark. 295. Obviously the more a defendant acts under provocation, the less is he deserving of punishment. Furthermore, to give a plaintiff a fine made necessary partly by his own conduct would place a premium upon inciting the commission of torts.

The mitigation of compensatory damages on account of provocation, however, presents a question upon which the decisions are in confusion. Many courts refuse altogether to allow such mitigation, holding that to do so would be to violate the well established principles that mere words cannot justify an assault, and that one who has been injured by another without legal justification can recover for the loss which he has suffered. Goldsmith v. Foy, 61 Vt. 488; Fenelon v. Butts, 53 Wis. 344. Of those courts which allow the mitigation of compensatory damages, some do so for the same reason for which they allow the mitigation of punitive damages, overlooking the distinction that punitive damages are exacted only by way of punishment, while compensatory damages are given merely to recompense for actual loss. Fraser v. Berkeley, 7 C. & P. 621. Others adopt a ground which may be best described as a sort of "moral set-off," the defendant being allowed to balance his ethical claims against the legal claims of the plaintiff. Burke v. Melvin, 45 Conn. 243. In still others it has been vaguely suggested that the doctrine of punitive damages should be mutual, that it should apply to the conduct of the plaintiff as well as to that of the defendant. Robison v. Rupert, 23 Pa. St. 523.

This last suggestion would seem to embody the correct principle. Through punitive damages the community punishes the defendant by making him pay more than is necessary to compensate the plaintiff; through mitigation of damages it punishes the plaintiff by giving him less than will compensate him for the loss which he has suffered. In both cases a penalty is placed upon the wrongdoer primarily to punish him, and this is given to the other party only incidentally for reasons of convenience. See SEDG. DAM. 8th ed. § 352 f. On this ground it is believed that a recent New York case which extends the doctrine of Kiff v. Youmans, supra, to the mitigation of compensatory damages was correctly decided. It carries out consistently the New York attitude as to punitive damages. Genung v. Baldwin, 77 N. Y. App. Div. 584. Since mitigation of damages is only punitive damages in another form, the above reasoning does not apply to states in which the doctrine of punitive damages is repudiated. There the arguments that criminal and tort liability should not be confused, and that an action fitted for securing compensation for private injury is not adapted to punishing public wrong, would be applied equally to both forms of punitive damages. Mangold v. Oft, 88 N. W. Rep. 507 (Neb.).